Adam Feldman watches Supreme Court trends: voting blocs both usual and unusual, numbers of concurring and dissenting opinions, and other analytical ways of predicting outcomes. In our discussion, we cover:
We then tee things up to do a round up of the 2023-2024 term.
Adam Feldman biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.
Announcer 0:03
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis,
Jeff Lewis 0:17
welcome everyone. I am Jeff Lewis
Tim Kowal 0:19
and I'm Tim kowal, a certified appellate specialist. Both Jeff and I have faced a lot of unusual problems that come up at trial and on appeal, and in this podcast, bringing you recent cases and guests, we expose you to the unusual. If you find this podcast useful, please recommend it to a colleague. Yeah,
Jeff Lewis 0:33
if you like being surprised in your legal practice, take this as your spoiler alert,
Tim Kowal 0:37
right, Jeff. You know, on this show, we usually talk a lot about it, you know, in the weeds, California Court of Appeals stuff. I thought we'd go high level today and bring on a very special guest, Adam Feldman. Adam Feldman with empirical SCOTUS. He's going to talk to us about the recent Supreme Court term. US Supreme Court term I have to specify in this podcast, because we do a lot of California Supreme Court talk. Adam is an attorney with a JD from UC Berkeley bolt Hall School of Law. He has a PhD in Political Science from the University of Southern California. Adam was a trial lawyer in large and small firms in the Los Angeles area. He has expertise in statistical analysis and data modeling, and has published a variety of articles in peer and law reviewed journals in these areas, and he has consulting experience with multiple law firms and interest groups, and he has a wide ranging toolkit helping lawyers make efficient and effective decisions in their litigation. So welcome Adam to the podcast. Thanks for joining us. I
Adam Feldman 1:37
appreciate you guys having me on.
Tim Kowal 1:39
All right. Well, tell us a little bit about your your path from for being a practicing attorney for a time and then going into academia and now writing about the courts for the benefit of us practicing attorneys?
Adam Feldman 1:52
Yeah, so I like to, I like to take up things that I feel like there are big holes in. So I when I was in the practice of law, I saw, I read some pieces about how numbers could help understand big law questions, trends over time and patterns. And this was really interesting to me, because it wasn't really something that was taught in law school, but made a lot of sense that we could understand things from the past and how they lead to predictions about how things are going to come in the future, or understanding contemporary context. So it's not that far from an originalism type of standpoint, where we look at history as the guide. So that's kind of where my interest in this started, but I didn't have a strong statistical background, and so I went back to grad school to really build that side of my skill set and and since then, I've found that in current analyzes of courts, there really isn't much analysis That's that's done that looks at statistical aspects of decision making. So win rates, loss rates, who's been successful, who has been less successful, different ways of parsing data. So you know, for the US Supreme Court, for instance, whose cases are getting granted and denied, and then how the Supreme Court's deciding on the merits. So you know, statistical evidence can give us a lot of understanding about the contemporary context, and I try to piece these things together, sort of like a puzzle. So
Jeff Lewis 3:26
is this like a Moneyball approach to tracking Supreme Court data, like objective or is there a subjective element here?
Adam Feldman 3:34
It's funny that you say that, because actually it's been called that for Moneyball data, and for good reason, some of my interest just getting a little bit deeper in the weeds there came from analytics use in sports. You know, I saw how you can use numbers to make better predictions and strategy. And you know, psychology isn't that far afield from what they do on the baseball diamond in terms of understanding how people have acted in the past as a way to predict what's going to happen in the future. So it's very much, you know, in the predictive side, like Moneyball for lawyers. But you know, we can also go deeper into history and understand how we got there. And so the historic context is, is also really important there.
Jeff Lewis 4:15
And you focus on the Supreme Court, do you also focus on like lower courts, like the ninth circuit or California Supreme Court, or is your data strictly the Supreme Court?
Adam Feldman 4:24
So I focus on the Supreme Court because that's kind of where I started and where my bread and butter was in PhD studies in political science and law. Oftentimes the court of interest is the supreme court because there's just more data there than for other types of courts. But as I you know, kind of moved through this area, I started developing data sets for other courts. I actually have a project that's going on right now for something called court analyzer, where we're picking apart appellate courts at the state level and doing this work across the United States. So it's very much something that's malleable. Role in terms of an approach to other courts, and just involves putting data together, because as you have more cases, just about any other court has more cases than the Supreme Court, which I'm sure we'll talk about a little bit today. But as you expand outward in terms of volume, it becomes more complicated, and there's just more data intensive studies that need to go into building framework
Tim Kowal 5:22
so Adam, when, when trial attorneys and constitutional litigators and appellate litigators call you, what types of tasks are they asking you to help them with? Is it helping them prepare their the briefs themselves, helping them analyze, you know, do they have a do they have a shot at a path to certiorari? What kinds of projects do you help constitutional litigators with?
Adam Feldman 5:44
So oftentimes it's institutional litigators who are doing these like repeat players who who can use those numbers strategically, if you know the odds of getting a cert grant or some kind of motion or appeal, and you know, the odds, it can give you a kind of layout the strategy for you, you know, what is your likelihood of winning? What can you tell your clients about the likelihood of winning? You know? And the more information that we have, the better types of predictions we can do. So, you know, a lot of what I've worked on has to do with targeting specific judges, strategy before judges, so understanding their patterns of decision making in the past and what type of insight that gives us into what they will likely do in the future. You know, it ranges, though. You know, some people want to know where to file, so if you have some flexibility in where you can file, and you have a particular interest, you know, I can give statistics, and I've done this work with clients about what you know your likelihood of success on an issue is depending on where you file it. So it's really anything from the beginning of litigation all the way through oral arguments and and so you know, the court analyzer project I just mentioned is really geared at what you were mentioning, Jeff, which is developing arguments in briefs and trying to think about these are successful things that have been used in arguments, that have been used in the past and and so you know, if you know the judge, we can really target the argument based on the judge. But if you know, you know, don't know the judge, and you know the court system you're filing in, and we can give accurate insight into what are going to be the most successful things to mention in a brief or at oral argument,
Tim Kowal 7:22
and Adam, when you say that you're working with a lot of institutional players and institutional litigators, that sounds like people who probably already know what judges and justices are going to be friendly to which kinds of arguments, and yet they're reaching out to you to get an insight that they that they don't know Just just by being normal litigators who were obsessed with the Supreme Court and with the big, the big issues of the day winning their way up to the Supreme Court. But what, what kind of insight or inside baseball information and analysis are you able to give those players who are already very studiously looking at the courts? So
Adam Feldman 7:58
you know, I'm going to run with this, this baseball analogy, a little bit a little bit more. Yeah, you know, I mean, like, one of the things that I often bring up at the start of talks about the Supreme Court is during John Chief Justice John Roberts confirmation hearing, where he talks about how, you know, judges are like umpires and, you know, they they call balls and strikes, but they don't pitch and hit. So that was, you know, one of the quotes that's kind of gotten recycled over the years from his confirmation hearings. And while I don't totally agree with that analysis, I think that, you know, just just judge, judges and justices are sometimes active in shaping and framing the way that outcomes are actually decided. You know that that analogy where, oftentimes lawyers and judges, frankly, are shooting by the hip, right? They're, they're using their knowledge of what has come before to, you know, get some kind of qualitative understanding of what somebody might do in the future, but to benchmark it, to actually have statistics behind it, gives you a level of accuracy that if you're litigating, you know, 100 cases, let's say, in a similar jurisdiction, and you can improve your, you know, your betting average by 2% that's the marginal gain is, is, you know, frankly, is pretty big. So as you have, you know, if you're doing this again and again, you might have some insight, but you might not be able to jump those 2% that you've just been, you know, stuck behind for 10 years. So if we can increase a probability of success even marginally that, you know, that's that's a win in terms of, you know, if we're talking about millions of dollars that are going into litigation, yeah,
Tim Kowal 9:36
yeah. And a little bit later on in the next part of our, of our conversation, we're going to put this into practice a little bit and talk about the decisions of the most recent, 2023 24 term and and whether, whether they surprised you, whether the the court was able to put anything past you, or whether you would have, you would have taken those, taken those odds to begin with. But before that, I wanted to add. Ask you a little bit about well, and first, let me tell our audience about empirical SCOTUS. If you want to find out more about Adam's work, visit empirical scotus.com and I take it. You can find the court Analyzer tool there.
Adam Feldman 10:12
Yep, we have a link through there. And we also have the past term statistical review that's up there. So if you're interested in a very detailed analysis of everything statistical from this past term. We have it up there also. So, you know, there's, there's enough material there to to, you know, get you through a few, a few boring days. So we have a lot up there.
Jeff Lewis 10:37
And have you reserved the domain Moneyball SCOTUS yet, you know, no,
Adam Feldman 10:42
but I appreciate the sentiment, and that is something that I will get to after the show. I appreciate it. Yeah,
Tim Kowal 10:49
so empirical scotus.com will also put Adam's Twitter or x profile prolific on on x, or formerly known as Twitter. So if you're looking for for day to day or week to week, SCOTUS and other court analysis, that's that's your daily feed. I want to talk a little bit about a big picture question about the court. There's been a talk about how the public approval of the Supreme Court has dipped in in recent years, and especially just in the last year. There was, I was looking at a recent Gallup poll that asked the question was, Do you approve or disapprove of the way the Supreme Court is handling its job? And the result is, 58% disapprove of the way SCOTUS is handling its job. And that's a that's a big 17 point jump from just about a year ago. And I noted, when I read that question, that Gallup poll question, the phrase handling its job. I mean, that's something that you Adam Feldman are looking at. You're not necessarily just looking at the results, but the methodology and the jurisprudential philosophies that are that are applying in the way that the court is handling its job and coming to those decisions. And that's different, a little bit different from the outcome of the cases. They're related, but very different. And I think that distinction is probably lost on the respondents of that poll. But I want to ask your question from from your perspective, looking literally at how the court comes to its decisions. Is SCOTUS performing better or worse or the same? How is SCOTUS? SCOTUS handling its job in Adam Feldman's opinion?
Adam Feldman 12:29
So it's actually quite a complicated answer. I have to that question because, you know, SCOTUS has been doing similar things, really, in terms of having kind of a path dependence since Chief Justice Roberts was installed in 2005 it's been a predominantly conservative court since then, but the narrative has really shifted, and that started, I think, with the death of Justice Scalia, with the nomination of Merrick Garland, and then the nomination confirmation of justice Neil Gorsuch. So I think that created some polarity in terms of really, really splitting the country into two based on political preferences and attitudes to the Supreme Court. So in terms of the Supreme Court's business, I haven't seen a huge change. They've been taking fewer cases, but that has been on a downward slide for quite a long time. They've been back loading the docket, so you have most of the decisions now coming in June, even though the arguments end in April, and they start in they actually start in October and end in April. So there's, there's a long timeline to, you know, have all, almost all, decisions come in June. So from an efficiency standpoint, you know, I don't think they're doing a great job, but I don't think that's, that's what people are focusing on when they look at and they're when, and they talk about disapproval, right, I think. And what I've seen in reading public opinion polls is that you have a big split. You have the left, which has been declining, you know, considerably over the years. And you know, it just increased the decline after after Justice Ginsburg died, and you have another conservative justice, justice Barrett, installed in her place. Then a year and change after she was installed, you have the Dobbs decision, which I think you know, was the kind of nail in the coffin in terms of the really, really pushing apart the left and the right of the public views towards the Supreme Court. And so what I've seen in terms of pressing down in increasing the disapproval is actually the moderate vote, and the moderates politically have been disapproving in greater numbers of the Supreme Court. So while there is, if anything, increase in public support from the conservative political. The population, there's decrease in the liberals and the moderates and so, you know, I see that continuing on. I don't see that as a trend that's going to bounce back anytime soon. And
Tim Kowal 15:12
you you started that answer talking about, you know, Merrick Garland and, you know, maybe things that are that are external to the way the court works itself. So I guess can't ask you to quantify it, but is your sense that the public opinion of SCOTUS is driven a lot by things that are not even anything to do with the way the nine justices on the Supreme Court are doing their job.
Adam Feldman 15:36
Yeah, I do. You know I teach constitutional also at at Cal State, Northridge and and in past, in teaching that I like to get perspectives from the students about what they know about the law and the Supreme Court. And you know, these are upper division political science students, for the most part, who have studied law before and read Supreme Court cases. And you know, they might know little bits and pieces about decisions in the past. They, you know, might know Roe versus Wade, Brown versus Board of Education, but they're not really steeped in case law. And I think most of the public is similar to that, where they, you know, might have some knowledge of some of the justices and some big cases, but they, they don't follow the Supreme Court religiously. And so, you know, what do you know about the court? You know, what's in the media? You know, the conversations about who the justices are, the big narratives about the court as a conservative block, you hear these stories about Justice Thomas and Justice Alito that are kind of salacious in terms of, you know, receiving gifts and, you know, doing things that are political, and ways that you know that justices aren't expected to act, and that's not at all to talk about the normative stakes at issue here, but just raising those in the media, I think that creates a picture of what goes on with the Supreme Court. You know how I think that drives the narrative right? That's what people are thinking about so oftentimes they're thinking about things external to the court. When they're talking about their approval of the court, and only really focusing on the headline cases when the general public thinks about the Supreme Court's decision making. Yeah,
Tim Kowal 17:16
yeah. I recall reading a book years and years ago about how it wasn't until about 100 years ago that anyone in the public even knew the name of a Supreme Court justice. And I think it was in the New York Times, they started talking about the Four Horsemen on the on the Supreme Court who are overturning a lot of social you know, like labor laws, pro labor laws and things and and all of a sudden, members of the public would start reading about names of members on the Supreme Court. And that trend, obviously has continued. And I wonder if, in your opinions, is there been anything surprising in the amount of coverage, amount of the amount or nature of media coverage of the Supreme Court in recent years that that has had maybe an outsized effect on these negative public opinion polls?
Adam Feldman 18:04
Yeah. So it's interesting to ask that, because the Supreme Court is has been split in terms of, like, ideologically the left and the right of the court has been split about the same amount now as it was 10 years ago. So if you look at the overall numbers of cases that are coming down along this ideological fracture of the left and the right. That hasn't changed a time, but the caliber of cases that our public facing has so you know, when we talk about abortion rights and gun rights and and other you know, environmental rights, things that the public is really focused on. Those are issues that the Supreme Court's hitting on now that are getting blasted through the news cycle. So, you know, as as these, the Supreme Court takes up cases that have really kind of broad implications for the media driven public, you know, people are going to be focused on the Supreme Court more than they were in the past. And, you know, I'm, this is just from a subjective point of view, but I see a lot more coverage of the Supreme Court over the last few years than, you know, in the decade before that. So, you know, I mean, some of it is, I think, fallout from the Scalia to garland to Gorsuch and that, you know, really was kind of the, the first thing you know, in a while that I saw that, you know, where there was external stuff to the Supreme Court getting a lot of coverage, and I think it's just kind of picked up the pace since then.
Jeff Lewis 19:33
Let me, let me ask a detour question. I'm intrigued. Is it cases, public stature, whether it's a big case that the public is super interested in, is that something you can quantify and plays a role in your analytics when you're trying to predict how a court might rule in a big, big, big case, as opposed to some obscure issue that only appellate nerds know about?
Adam Feldman 19:55
Yeah, so I see two parts to that question. The first is. Is, you know, can we quantify, right? And this is actually, you know, it's interesting, because I'm working on a paper that looks at this exact question, you know, is the court doing something differently now than it was pre Barrett, when it was a five, four court, now that it's six three. And so some of the ways we can measure that is, we can, and I have another scholars in political science, you look at the news coverage, so not only do you look at the amount that is coming from one outlet, but you know, you look at the the newspapers, the big newspapers across the country, the top 10 in circulation, and you see it has, you look at, has that coverage changed? And is that, you know, are there specific cases that are most of the focus, or is that generalized? So that's, that's one. You can quantify coverage through the media. You can also track amicus brief filings, and I think that gives some kind of insight in terms of the broader appeal of a case, not always because, you know, I don't know if the general public is interested in administrative deference as much as you know legal nerds are, and people that you know work in politics, I mean, they should be because of the implications of decisions that relate to that. But, you know, my hypothesis is that, you know, the general public isn't as aware of of that type of case that's really been before the Supreme Court this last year. But generally, news coverage, amicus briefs are two of the ways that I like to measure case importance. So, you know, there's, there's that, and you know there's the question of, are there things that are more that you can't measure? And I think you know that comes down to case selection, right? We don't know as much about the cases the Supreme Court doesn't take. So, you know, there could be many salacious issues that the Supreme Court's ducking, and that could be issues like abortion, which the Supreme Court had a few cases over the years but didn't look at any, at any cases that were challenging roe directly until after Barrett was installed. So, you know, we don't know which cases were filed and denied. You know, in terms of like the 7000 that are filed each year, very few people are going through each petition. So some of this is measurable. Some of it isn't measured. But, you know, I think in terms of cases like that, where they're the Supreme Court's challenging precedent that that people have become attached to over time in ways that are somewhat personal, that these cases have come up in a few instances the last few years, and have gotten a lot of traction.
Tim Kowal 22:23
Interesting, okay, Adam, you had, you had mentioned, as have many, that that we have a six three court. There's six, you know, six three super majority Conservative court now. But I've heard you elsewhere and others refer to it not so much as a six three court, or maybe only nominally a six three court, but but in many ways, a 333, court. Can you explain that breakdown for us? Yeah.
Adam Feldman 22:46
So it depends how nuanced people want to get, because six three explains something. It explains something we know quantitatively, where the six justices vote together in a large number of cases, and especially in a large number of split cases. So when I do an analysis of, you know, cohesion of the court, usually I'll just throw out all the unanimous decisions, because that doesn't tell us about the differences between justices. And so I start with the split decisions. And when we look at those splits, you have, you know, hide vote correlations. You have people on you know, the of the six voting similarly to one another and the three voting similar to one another. So the six three is something that we can measure and that we see in some of the most important cases each term. You know, this past term with Loper bright, the administrative deference case, came down 63303, creative. The previous term, the affirmative action case Dobbs with abortion. So really, the cases that people in the public are focusing on most frequently, the courts deciding things on this on a six, three basis. But now we're seeing, you know, if we get into the nuance and the fine grain details, we're seeing differences in approaches within cases, even that are six, three in terms of the outcome. So we're seeing these justices, and as you were mentioning 333, the middle three, our Chief Justice, John Roberts, Justice Kavanaugh and justice Barrett. We're seeing concurrences. We're seeing we're seeing different approaches within the same cases that show that their interpretation of law, their methodologies, might not be the same as the three justices that are farther to the right. And we're seeing vote splits in other directions, but these are, you know, when we see vote splits that aren't six three in major cases, they're oftentimes not the ones that the public is most interested in, so that doesn't get the most coverage, but you know, from a court that I think many people that were really in the know court scholars would have said it was a clear six, three court, after the Dobbs and Bruin decisions and the, you know, two terms ago, that there, there's a lot more complexity now where the it's not always going to be predicted. That you're going to have six three votes on important cases, and then I'm sure we'll talk about that with in some of the cases that were decided this past term that you know, people, including myself would have thought would come down along six three lines, but didn't. So there's definitely surprises that the justices have, and I think we're going to see an increasing number of these surprises in future terms.
Tim Kowal 25:23
I've seen the the breakdown of the 333, court labeled in different ways. But recently, I think, I think this is from Dean Jens at University of Central Florida has labeled it in terms of Institutionalists, conservative and liberal. Or maybe that's my labeling, but that's that's on the matrix he's got. The y axis is more and less Institutionalists, and the x axis is more more liberal to more conservative. And I wonder if you would agree with the with the labeling, of labeling. You know, the liberal block being Kagan Sotomayor and Jackson, and an institutionalist block as Roberts Kavanaugh and Barrett, and then a conservative block being Alito Thomas and Gorsuch.
Adam Feldman 26:08
So I've seen this article as well. I believe it ran in Politico and so right you have the y axis. So the vertical dimension is institutionalist versus non institutionalist. The X axis horizontally. Is left, right, liberal, conservative. There. You can definitely group the 333, Justices into threes. I think that's possible. The biggest disagreement I have with the way that that's graphed, I'll say there are two disagreements I have. One is, you know, can we say that the three justices in the middle are actually middle justices. Because the way that the graph makes it look is that they're centrists where I would not, you know, by any stretch, call them centrists. I think you know when, when push comes to shove. In a lot of the the big cases this past term and in previous terms, you see them siding together. So, you know, I think that there's a little bit of of kind of shifting the graphs to make it look like they're in the middle, where I would actually, you know, locate them closer to the justices on the right. The other thing that I think needs more explanation with this approach is how you measure institutionalism, and can we come up with a measurement that is, that is kind of widely accepted? And so, you know, I've often referred to Chief Justice John Roberts as an institutionalist, really. You know, since the Affordable Care Act, cases where most people expected him to rule against the Affordable Care Act and the individual mandate, he upheld it under the tax clause and and from there on. You know, we've seen him, in some big cases do that, where he has gone against the popular kind of understanding of how a conservative will vote to to do something that kind of bridged the ideological divide Kavanaugh and Barrett, I don't necessarily see in the same institutionalist light. I just don't see them as approaching cases in the same way, necessarily, as Alito and Thomas in particular. So I think their methodologies, kind of their political preferences are not as far to the right, and we're seeing more moderation from them, you know, each term that they're on the court. But yeah, my you know, just kind of rehash. My two nits to pick are how we measure institutionalism and how far to the right this middle block actually is situated.
Tim Kowal 28:30
Yeah, yeah, understood. I have the same, same query about how to measure institutionalism and that could, that could be the makings of a separate interesting discussion. Do you have a separate labeling convention for the 333 court labels for each of the respective blocks?
Adam Feldman 28:46
I mean, so I look at it as you know, in terms of political preference, and we measure that by their voting output and where that aligns with the general political public. And so, yeah, I see the three in the middle as more moderate than the three on the left, where they're crossing over in ways that the other justices aren't. So you know, I look at voting alignments oftentimes, you know, how close are certain justices voting to each other? And we see the middle justices, the Kavanaugh, Roberts and Barrett, voting alongside the Liberals at a high rate, voting alongside the other conservative justices at a higher rate. But frankly, this past term, and then the several previous to this, you have Roberts and Kavanaugh voting in the majority over 90% of the time. And Bear it just below that, at the low 90s. So these justices are in the majority so frequently that they are in the majority with the liberals, with the conservatives. And you know, in most cases, even if the other justices, some of them split off. So, you know, just by voting in the majority so frequently, they push themselves into the middle in a way that the six justices on you know that six justices that make up the far. Left in the far right, you know, just dissent more frequently they disagree with the middle of the court. You know, in kind of even numbers. So, so, yeah, I think we this, this horizontal dimension really has something, but it depends how we label that access right. What does it mean to be conservative? How conservative are the justices on the right versus the justices on the left, but I stick to one dimension right now, we could, we could complicate that. And people have, and I've seen it done well, but complicated doesn't always make it easier to understand. On the contrary, it sometimes makes it much harder to understand. So in an easy way, to distill it in the kind of most parsimonious fashion, looking at on a left right axis seems to be the best way to do it. Okay,
Tim Kowal 30:45
well, fair enough, but we're gonna, we're gonna carry some of those ideas forward and apply them to some of the recent cases, but we're gonna save that for to the next part of our discussion. So tune in to our next episode where we're gonna talk some of the the cases from the 2023 2024 term and see if they surprised Adam Feldman, or whether he would have called them ahead of time. If you had taken those bets to Vegas, would he come out of winter? So tune in to that next episode. Until then, if you have questions or interested in appellate tips while preparing for trial, please tune us in and refer us to a colleague See you next time
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